Vich

News Update 29/02/2024 Yesterday Cousins and its legal team went to the High Courtin London to oppose the application by Swatch to have our UK claim struck out. The case was heard by Mr. Justice Michael Green, a High Court Judge who also sits in the Competition Appeal Tribunal. In previous news stories, I have explained the arguments that we intended to bring, and I will not repeat them here. However, I am in no doubt that by the end of the day, Judge Green had a full picture of the consequences for Competition if Cousins action is not allowed to proceed. It was noteworthy that the Competition and Markets Authority sent a member of their Legal Team to observe proceedings from the Public Gallery. As expected, after more than five hours of evidence and legal argument, Judge Green advised that he would consider the matter further and release a written verdict in due course. Afterwards, our legal team said that the case had gone as well as it could have done, and better than they had thought likely. There is no fixed timetable for the verdict, it entirely depends upon the workload Judge Green has, but we hope to be able to advise you of the outcome in a matter of weeks rather than months. Regards Anthony

Thanks for posting the update which I only just noticed, amazing how Cousins are really stepping up and fighting on. vich

Message from Anthony Cousins:- At Long Last the Fight for Parts Supply is Going to the High Court Cousins battle with the Swatch Group is now heading to the High Court in London. However, after the ruling in Switzerland, the case in London commences with arguments that you might not be expecting. Anthony Cousins explains the details below:- It has been more than a year since I last updated you on our legal battle with the Swatch Group to overcome their refusal to openly supply spare parts. Doubtless some of you will think that we have gone quiet because we have given up, but nothing could be further from the truth. When we started this process, I made a commitment to keep fighting until we won the day, or had exhausted every available means. That fight has continued and has now reached a significant milestone. In December of 2021, the Commercial Court of Bern gave a verdict that ran contrary to the most fundamental principle of British and European Competition Law, which is that no matter can be decided without consideration of the impact upon UK consumers and competition in the UK. We supplied the court with overwhelming evidence to show that watch owners are suffering substantially higher prices for servicing and repair, are waiting significantly longer for their watches to be returned, have an extremely limited selection of locations where they can obtain service, and are frequently obliged to have work done to their watches that is not necessary and that they do not want. We also asked the court to engage independent expert witnesses to advise them on how British Competition Law is applied and decided. The Bern Court refused to consider any of that evidence, declined to employ any expert witnesses, and determined that Swatch was “objectively justified in changing its supply chain. In so doing, the Bern Court did not consider at all any of the evidence we provided on the impact of Swatch’s cessations of supplies on UK consumers and competition in the UK. As we reported in August of 2022, we appealed against this ruling to the Swiss Federal Supreme Court (FSC), pointing out in detail why the interests of consumers and competition are always paramount. Our experience of the FSC has not been good. Twice before the Bern court ruled in our favour, and on both occasions the FSC changed the Swiss Civil Code and found in favour of Swatch. Although our arguments were entirely correct, it came as little surprise when in September of last year, the FSC refused our appeal and found again for Swatch. It is outrageous that a foreign jurisdiction thinks it can alter the basis of a UK law, without even asking for any opinion on this from this country, and at the same time ignore a wealth of factual evidence that has been placed before it. I have no doubt that the Swiss judicial system is not a suitable forum to give rulings on British and European law, but explaining in detail why is an issue for another day. However, for you as the reader to understand what actions we have taken subsequently, it is necessary that you understand some basic points about why the Swiss had the right to rule on British and European law in the first place. Brexit had not happened when the case started back in early 2016, and an agreement existed between the EU, Switzerland, Iceland, Norway, and Denmark, called the Lugano Convention. This treaty deals with how cross border disputes between parties in the different countries should be managed in the courts, and in simple terms stated that all the signatories to the convention recognised each other’s judicial systems as being equal, and gave each other the right to rule using whichever country’s law was applicable. In our case this meant that a dispute between a British company and a Swiss company about a matter of British (and EU) law could be dealt with by either country’s courts. When we first wrote to Swatch about taking legal action, we told them that we would be taking them to the High Court in London if they did not resupply us within three weeks. To avoid that, they brought a claim against us in the Bern court without, however, telling us that they were doing this. But this did mean that the proceedings were supposed to be dealt with using British and EU law, not Swiss law. I am not going to detail the whole case again here, but for what follows to make sense, there are four significant points I must explain about how this relates to the Lugano Convention in our case. Firstly, the UK was (when the case began) bound by the Lugano Convention because it was a member of the EU, but when Brexit happened half way through our case, the UK was no longer part of the convention. The UK government applied to join the convention, and whilst waiting for a decision from the other members, held that any case started under Lugano rules would continue to be bound by them. Over a year later, the EU was still refusing to agree that the UK could join the convention, so the rules applicable in our case became somewhat less clear, and indeed before the final appeal was heard at the FSC, the Swiss courts declared that the convention was no longer applicable, and the final appeal was conducted under different rules. Secondly, all EU members use the same wording in their competition laws that appears in the EU Treaty, the only minor and required difference is that where the EU Treaty says ‘in the EU’, the UK Competition Act says ‘in the UK’. As part of the Brexit process, although the basics of UK Competition Law stayed the same, Section 60a was added to the Competition Act which allows UK law to deviate from EU law, so the two cannot be considered to be the same. Thirdly, under the terms of the Lugano Convention, if a matter is decided in one country then all the others are bound by it, and the courts of those other countries cannot review or overrule the decision, or hear the matter again, even if they are certain that the foreign decision is wrong. This is part of a wider legal principle known by the Latin phrase “Res Judicata”, which loosely translates as “This has already been Judged”. The point of this is to prevent a matter being repeatedly litigated, and to avoid conflicting judgements in different countries. Fourthly, under the terms of the Convention, the only action another member country can realistically take, is to refuse to recognise the foreign decision if it is ‘contrary to public policy’, but this has to be something other than the law applicable to the decision concerned, for example if one of the parties right to a fair trial was breached. As highlighted in the point above, it is not possible to argue that the Swiss courts did not apply Competition Law correctly. That would be ‘reviewing’ the case, which is expressly forbidden. Keeping these four points in mind, the actions that Cousins have now taken can be understood. When Swatch wrote to us in 2016 to say that they had lodged their claim with the Bern Court, there was a delay whilst we were waiting for the papers to be served on us. In that time period, we lodged our claim at the High Court in London in the expectation that the proceedings in Switzerland would not be admissible. Normally, a claimant has only three months to serve the papers on the other party, but because of the extraordinary nature of how the Swiss proceedings played out, we applied to the High Court for extensions to that time period, and in the end were granted a very exceptional ten of them. This meant that when the final FSC verdict came in, we still had a live claim that we could use. After lengthy consultation with our UK legal team, we identified two ways in which we believe the UK courts have valid reason not to recognise the Swiss decision, which in turn would allow us to bring the case again in the High Court, and have a British Judge decide a matter of British law concerning British markets and British consumers. Firstly, both the UK and Switzerland are signatories to the European Convention on Human Rights (ECHR), and it is contrary to public policy for the terms of that convention to be ignored. A crucial part of the ECHR is that parties in a legal action ‘have the right to be heard’. For this requirement to be met, it is vital that any evidence offered is considered by the court hearing the case. This did not happen in Bern. Secondly (as I explained above) after Brexit, UK Competition Law had the right to deviate from that of the EU. The Bern court did acknowledge the addition of Section 60a to UK law, but continued to regard UK law as being the same as that of the EU, and made its judgement on that basis. It is therefore true to say that UK Competition Law has not been applied at all, so it is not correct to claim that the matter has already been judged. In July this year, we served our High Court claim on Swatch (UK), and had the High Court start the process of serving on Swatch Group and ETA in Switzerland. The process of serving on foreign companies takes a few months, but Swatch UK received the claim within two days, and were required by the rules to enter a defence within six weeks. As we expected, Swatch responded by stating that this matter was already decided, and they applied to the High Court to have the claim struck out. We objected to the application on the grounds that I have explained above, and after some debate back and forth, it was agreed that there would be a one day hearing before a Judge in the High Court in order to decide whether or not the Bern verdict should be recognised in UK law. In simple terms, if the Bern decision is recognised, then there is little else that we can do. However, if the Bern decision is not recognised, then our current claim will continue and a longer hearing will be timetabled at which the evidence will be considered, and a ruling will be given under British Law. We are very confident as to what that ruling would be. On Monday of this week the administrative team at the High Court processed possible dates for the hearing, and it has been confirmed to us this will be the week commencing 26 February 2024. Whilst I am sure that there will be much interest within the watch repair world, this case has far greater significance. The Bern decision is not confined to watch parts, but covers wholesaling and other forms of distribution of any product in any market. If that decision is recognised, then small businesses in every sector who can not compete with the buying power of their larger counterparts will find themselves either out of business, or under the direct control of the manufacturers, and the big loser in the end will be the consumer. I never imagined when all this began that Cousins would end up fighting to uphold the basic principles of UK business law, but if that is what we need to do in order to preserve the right of our customers to continue to offer their services to UK consumers as they have done for Centuries, then that is what we will do. I will keep you updated as matters progress. Regards, Anthony

Hello Neverenough, I am curious to know if your quotes included the secure postage costs, sometime (a long time) ago before I joined this forum I was involved in sending my Glycine Airman to Switzerland and the postage costs were to say the least eye watering. I chose to send it to Glycine direct as I could not bring myself to put it into anyone elses hands due to my own sentimentality. Perhaps another member may point you towards an independent repairer specialising or acquainted with Longines. I must say that I have to give Cousins credit for their tenacity in this long drawn out battle ! Apologies to Neverenough, I think I should have addressed my post to Tutuim

OK this is a realy old posting and hopefully no one will read this I am obviously a hippocrite as I have an iwatch 6 provided courtesy of my son. It does provide certain health benefit advice that assist with the various medical conditions I currently host. However, I will not get used to my watch picking up all my calls and texts and immediately drawing my attention to them as well as the numerous deliveries from Amazon etc. My activities have been somewhat curtailed recently due to sight problems and other stuff but I have not quite given up on the hobby it just takes much longer to do anything. Happy new year to all, Vic

Lates I have received does not look too promising. "Judgement Given by the Bern Court On 28 December 2021, our Swiss lawyers received the long awaited judgement from the Bern Court. At the moment we do not have a full translation, but whilst the Court confirmed our position that Swatch are 100% market dominant in the supply of spare parts, it does not appear to have followed previous case law relating to companies with such monopolies, and has ruled that Swatch’s refusal to supply Cousins does not breach British and EU Competition Law. Cousins has until the 1st of February 2022 to lodge an appeal at the Swiss Federal Supreme Court. Our legal teams in Switzerland and the UK will be studying the judgement over the next few days, and we will provide further information and updates as we are able." My thoughts are that the court appears to have accepted that Swatch control a monopoly but they rule that it is ok to do so as it does not " breach British and EU Competition Law". I am no expert but simplistically that seems a bit odd, there can not be any competition against a monopoly as regards spare parts copyright/patented and owned totally by that monopoly. We will see as Cousins are not giving up at all though there must be quite a financial burden involved for them. Cheers, Vic

Here is The reply to my actual enquiry Hi Vic, Unfortunately (and unbelievably) we are still waiting on a verdict from Switzerland. They have been deliberating since last year and we have been given multiple deadlines for a decision and each one has been missed. Initially it was before Christmas (2020), then after Christmas, then before the summer break, then after the summer break, then before the Autumn break, now after the Autumn break. Our Swiss lawyers say they are as perplexed us as as to what is happening. Our hope is they cannot delay much longer and a decision must be forthcoming soon. As soon as we know, we shall publish the news on our website. As before i am happy for you to share this on your forum should you wish. Kind regards, Sam Cousins Cousins Management Team

Update: 20/10/21 - Swatch v Cousins The dispute between Cousins Material House Limited and three companies of the Swatch Group before the Commercial Court of the Canton of Berne on the question of whether Swatch can simply stop supplying spare parts to a long-time wholesaler has been pending for five years now. Cousins hoped to be able to speed up the proceedings somewhat by waiving the oral hearing, but unfortunately this was not the case, apparently also because the responsible law clerk of the court has changed. According to an oral information from the court this summer, however, the judgment should be ready around the fall/autumn vacation period, which means that it should be issued shortly.

Here is the reply from Cousins about Colditz enquiry:- Thank you for letting us know. The fund was set up by the British Watch and clock makers guild and is/was run & administered by them. The current legal fight between Cousins and Swatch has been entirely funded by Cousins. Thank you for the interest and offers of contributions, however this is not required. Hopefully we shall have some good news to report in the coming weeks. Kind regards, Sam Cousins Cousins Management Team

I have made an enquiry about donations and am awaiting the permission from the author to post it in full. Should be up in a couple of days. Cheers Vich

Just a brief Hello, I have not been active on the forum for some time but without going into detail there have been a few health setbacks and deterioration of sight has not helped. Ironically I have just recently been given an excellent watch makers lathe and am enjoying my practise with it. I am still tinkering but it takes much longer than it used to. I have an ancestors company verge fusee pocket watch in pieces at the moment, it is signed but as with these items probably not much of his own work gone into it. I will be working on it from time to time but parts may be an issue. Also an Omega bumper is in pieces, cleaned and ready to work on. So not quite written off yet. If anyone is interested, John Robey has published a PDF on Academia about Sam Harlow, one of my Ancestors from the line of Ashbourne Clock and Watchmakers,a Long Case Clockmaker. Its quite interesting, obviously to me, but others may be interested, I may have a word with him and get permission to put it on the Forum for folks. Anyway, hello to everyone for now and I will be popping back again from time to time. Cheers, Vic

Latest News from Cousins. Bern Commercial Court View this email in your browser Swatch v Cousins in the Bern Commercial Court At the end of June, we explained the remaining steps in the Swiss Legal process were informal written comments from both parties, a hearing, and then the written judgement. The informal comments were completed and we have been waiting for the date of the hearing. It is worth explaining that the Swiss procedure is rather different to that in England. The right to a hearing is part of the Swiss Constitution, and the Judges are responsible for investigating the evidence, not just applying the law. This means that it is only the Judges that ask questions at a hearing. The two parties in the dispute do not cross examine each other. They are allowed to ask questions of witnesses via the Judge, but not directly and only if the Judge thinks the answer is likely to add value. In our case, the facts are not disputed. Swatch openly admit that they ceased to supply us. The dispute centres on whether or not that action was illegal. All the points of law pertinent to that question have been covered in depth in the extensive written submissions. The Covid restrictions give the Court a range of issues when it comes to holding a hearing. Video links are not normally allowed in Swiss law but have exceptionally been permitted during the pandemic. However questioning witnesses via video in a foreign country raises all sorts of issues about jurisdiction, and would require a range of permissions from the British Authorities. Because of this, and also because the evidence is clearly laid out in the documentation, the Judge in Bern took the unusual step of asking both parties how they would like to proceed. We responded by stating that if the Judge did not have any questions for the parties or the witnesses, we would be willing to waive our right to a hearing if Swatch would do the same. The Judge described the proposal as “reasonable” and wrote to Swatch asking if they would agree to the same approach, which they did. The Judge has been studying the papers in detail for the past four weeks and has now advised us that his initial view is that a hearing is not required, but that he will make a firm decision on this point within the next three weeks. If a hearing is required, a date has been reserved in March of next year, and we would expect the final judgement two to three months after that. If a hearing is not required, we hope that the judgement will come much earlier than we would otherwise have expected. We will keep you updated. Kind Regards Anthony www.cousinsuk.com

Swatch v Cousins in the Bern Court only slightly delayed due to Covid-19 Our fight with Swatch over the supply of parts has only been slightly delayed by the Covid-19 outbreak. Because the Swiss judicial system mainly relies on written submissions rather than Court appearances, the impact on our case has been less than might have been expected. The deadlines for submission of documents were extended for an extra four weeks by the Swiss Federal authorities, and an extra two weeks extension was granted by the Judge in Bern. All the formal submissions by both sides have now been completed. The remainder of the process consists of informal comments by both sides (Swatch are due to submit theirs in the next two weeks and we will reply after that), and then a hearing in the Bern Court. We would expect the written verdict from the Judge around two to four months after that. The date for the hearing has not yet been set. The summer recess for the Courts runs from mid-July to mid-August and we expect it will be some time after that. A lot will depend on travel restrictions and quarantine issues, but hopefully by the Autumn this will not be a factor. As we said in our last News update, we were happy that our first submission was a very robust defence. As before, we can’t go into detail, but we can say that we think our second submission is even stronger than the first, and are very confident that the judge will reach the right verdict. We will keep updating you as matters unfold by email and on our website news page. Sorry about previous post. Hopefully this is better

Latest in the David and Goliath Battle. Swatch v Cousins in the Bern Court only slightly delayed due to Covid.docx